M/S. Sanat M. Dalal v. Reliance Industries Ltd. And ORS

IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.664 OF 2016 M/s. Sanat M. Dalal ...

Petitioner Vs.

Reliance Industries Limited ...

Respondent Mr. Sunip Sen a/w. Mr. Nirav B. i/b. Maneksha & Sethna for Petitioner. Mr. Vipul Shukla for Respondent No.1.

CORAM : R. G. KETKAR, J.

DATE :

FEBRUARY 04, 2016 P.C. :

Heard Mr. Sen, learned Counsel for petitioner and Mr. Shukla, learned Counsel for respondent No.1 at length. Mr. Sen orally applies for deletion of respondents No.2 to 13. On the oral application made by Mr. Sen, respondents No.2 to 13 are allowed to be deleted from the present proceedings. Amendment shall be carried out forthwith. 2.

By this Petition under Article 227 of the Constitution of India, petitioner has challenged the order dated 20.10.2015 as recorded in the Rojnama as also order dated 20.10.2015 below exhibit-30 and order dated 05.11.2015 below exhibit-32. By the first order dated 20.10.2015, the learned trial Judge closed the evidence of the plaintiff on the ground that plaintiff did not take any steps to adduce secondary evidence. The learned trial Judge adjourned the matter for cross-examination to 05.11.2015. By order dated 20.10.2015 below exhibit-30, the learned trial Judge rejected the application made by the plaintiff for recalling the order dated 20.10.2015. By the third order dated 05.11.2015 below exhibit-32, the learned trial Judge rejected the application for exhibiting the documents filed by the plaintiff on the ground that documents at serial No.1, 6, 7, 9, 10 and 11 are not the original. Plaintiff has failed to 1/3

obtain permission to adduce secondary evidence though sufficient opportunity was given. Plaintiff is not the author of the documents at Sr. No.3, 4, 12, 13, 14, 19, 20 and 37. The contents of these documents have not been proved as provided under Section 67 read with Section 60 of the Indian Evidence Act, 1872 (for short 'Act') The document at serial No.19 is not the certified copy of the public document within the meaning of Section 76 of the Act and hence these documents cannot be marked as exhibit. The document at serial No.38 is not proved as per the provisions of the Act. Hence, that cannot be marked as exhibit in view of the decision of Rajasthan High Court in Ramswarup Bagari Vs. State, AIR 2002 Rajasthan 27 and the decision of the Apex Court in the case of B. Singh Vs. Union of India, (2004) 3 SCC 363. 3.

Mr. Sen states that within one week from today, plaintiff will take out application for leading secondary evidence. He further seeks permission to withdraw application exhibit-32 for exhibiting documents as the said application could have been filed after obtaining leave for leading secondary evidence.

4.

In view thereof, Petition is disposed of in the following terms: a.

Order dated 20.10.2015 closing evidence of the plaintiff is set aside;

b.

Order dated 20.10.2015 below exhibit-30 is also set aside; c.

Plaintiff is permitted to withdraw application exhibit-32 for exhibiting documents with liberty to file it after the trial Court passes order on the proposed application for leading secondary evidence;

d.

Application for leading secondary evidence shall be filed within one week from today;

e.

The learned trial Judge will pass appropriate order thereon 2/3

in accordance with law;

f.

All contentions of the parties on merits are expressly kept open;

g.

In view of the withdrawal of the application exhibit-32, the order dated 05.11.2015 stands dissolved. The learned trial Judge will pass appropriate order on the proposed application for leading secondary evidence, in accordance with law and uninfluenced by the observations made in this order or in the impugned orders.

(R. G. KETKAR, J.) Minal Parab 3/3